Landmark Con Court Nkandla Ruling

CONSTITUTIONAL COURT RULING AFFIRMS THE POWERS AND DUTIES OF ALL CHAPTER 9 INSTITUTIONS

1 APRIL 2016

SECTION27 welcomes the landmark ruling of the Constitutional Court in Economic Freedom Fighters and Democratic Alliance v Speaker of the National Assembly and Others. The unanimous finding of the Constitutional Court that the failure by the President to comply with the remedial action ordered against him by the Public Protector in her report of 19 March 2014, is a necessary step in defence of our democratic institutions and a commitment to the protection of the rule of law.

The judgment is an unambiguous statement about the powers and purpose of the Public Protector. It also clarifies the duties of the Executive, Parliament and the Judiciary in relation to each other and to the people of South Africa.

In his reading of the judgment, Chief Justice Mogoeng Mogoeng pointed out that:

“the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly. And that is the Public Protector. She is the embodiment of a biblical David, who fights the most powerful and very well-resourced Goliath… The Public Protector is one of the true crusaders and champions of anticorruption and clean governance.”

We regard it as highly important that this ruling affirms the position of the Public Protector.

The Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance. The tentacles of poverty run far, wide and deep in our nation. [para 52]

However we also note the repeated reference by the Constitutional Court to the Public Protector as one of the several state institutions supporting constitutional democracy (Chapter 9 institutions) that are duty bound “to be impartial and to exercise the powers and functions vested in [them] without fear, favour or prejudice.”According to the Court “this would not ordinarily be required of an institution whose powers or decisions are by constitutional design always supposed to be ineffectual.” [para 49]

In the course of SECTION27’s day to day work, we encounter multiple failures in the delivery of rights such as access to quality healthcare services and access to basic education with often disastrous outcomes. However, we also find other chapter 9 institutions to be under-resourced and often ineffectual or unwilling to address these human rights violations. We call on the South African Human Rights Commission (SAHRC) and the Commission on Gender Equality (CGE), which have equally important functions and powers, to henceforth take much bolder and more purposeful action in the advancement of key rights in the Constitution and in the protection of the most vulnerable people in South Africa.

We hope that these institutions will take the opportunity this judgment presents to re-examine their own functioning and commitment to address the structural inequality that results in keeping poor people on the margins of our society and undermining the Constitution’s vision.

This judgment is a vindication of our constitutional democracy. We congratulate the Public Protector and the Constitutional Court on taking decisive action in this matter. We call on the parties of the National Assembly, the ANC in particular, to internalise its arguments and order and to ensure that such a travesty is never repeated.